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Judge may allow privacy suit over Petraeus case leaks

A federal judge signaled Friday that she's inclined to allow a Florida woman to continue her lawsuit accusing the federal government of illegally leaking her emails to the press after she reported receiving online threats and became swept up in an investigation that ultimately exposed an extramarital affair Gen. David Petraeus had with another woman.

The lawsuit Jill Kelley filed last year stems from a complaint she made to the FBI in May 2012 that she was receiving e-mail threats that appeared to be warning her to stay away from then CIA Director Petraeus and top military officers she was friendly with. When the story went public in November 2012, press accounts based on anonymous sources suggested Kelley might have been having an affair with Petraeus or another officer, Gen. John Allen. Some press reports described in detail e-mails Kelley sent or received.

Petraeus offered his resignation after the White House was briefed on the matter in November 2012, days after an FBI interview in which he acknowledged an inappropriate relationship with a writer and former military officer, Paula Broadwell.

At a hearing that stretched for nearly two hours Friday, U.S. District Court Judge Amy Berman Jackson repeatedly lit into the lawyers who filed the suit, faulting them for an overly inflammatory complaint that the judge said seemed aimed more at public relations than litigation.

"Using the words 'malicious' and 'egregious' 100 times is not fact. ... The complaint bears no relation to a complaint," Jackson declared, referring to the document later as "the press release with the word, 'Complaint,' at the top."

Kelley's lawyer, Alan Raul, said the complaint needed to recount numerous press reports since the central allegation is that private government records were leaked illegally to the media. Kelley also alleges the FBI obtained her entire email account when she agreed only to give it access to a certain message or messages.

The judge also took a jaundiced view of the press' conduct in the case and more broadly, calling it "oversensationalized and oversexualized."

"That's what the media does," Jackson said. "It does that to anybody who gets into its clutches, then goes on to the next thing."

Raul said the case tied into the ongoing debate about National Security Agency surveillance and was in some ways worse than the claims against the NSA because Kelley's entire email account was obtained by the FBI without her permission and portions of it were turned over to the media.

"This case is about electronic surveillance that was excessive and of the type right now in Washington we're talking very extensively about," Raul said. "This is an electronic surveillance case that has resulted in concrete harm to real people, not notional or abstract harm."

Jackson seemed inclined to allow the central allegation in the case to proceed, namely that some government officials released private information about Kelley to the media. However, she also appeared ready to strike several other allegations in the complaint, such as claims about maintaining inaccurate or irrelevant records.

Justice Department lawyer Peter Phipps said the core of Kelley's suit should be dismissed because the complaint fails to allege that the information disclosed publicly was retrieved from a records system protected by the Privacy Act.

The judge didn't seem troubled by that omission, and she indicated that it was only logical the information came from official law enforcement files. But Phipps said it might have come from elsewhere, either systems that aren't protected by the Privacy Act or perhaps from individuals outside the government.

Phipps also said Congress allowed exemptions from the Privacy Act so that law enforcement personnel wouldn't be second-guessed in court about how broadly they choose to investigate a complaint. "It's hard to know beforehand ... what will be a valuable lead and what won't," the Justice Department lawyer said.

Privacy Act cases about leaks to the media can often entangle members of the press in subpoenas, depositions and contempt proceedings. There were hints of that Friday when Raul reminded the court that one of the key pieces of evidence in the case is a fax then-Washington Post reporter Douglas Frantz sent to Kelley saying he had seen her emails. Frantz now serves as assistant secretary of state for public affairs.

Jackson twice asked Raul how the plaintiffs planned to prove their case. Raul said he assumes that current and former government officials "will testify truthfully" about the disclosures. However, he did not rule out subpoenaing the journalists who published stories about Kelley.

One harm Kelley says she incurred as a result of the case is losing her position as an honorary consul for South Korea. Raul said she received a "stipend" for that work and the term "honorary" comes from an international convention that creates that title for consuls who are not citizens of the country they represent. "It is a serious, real position," he said.

Officials have said that the cyberstalking investigation was closed without any charges being brought. However, an inquiry was also opened into possible mishandling or disclosure of classified information. At a Senate hearing this week, FBI Director James Comey said he could not comment on whether that investigation was still open.

CORRECTION (Friday, 5:40 P.M.): Allen was incorrectly described as a NATO commander in an earlier version of this post. He was selected for that job, but later withdrew.